Written Statement of the Government of the Federal Republic of Germany

Written Statement of the Governmentof the FederalRepublicof

cermany

ExposéécritduGouvernementde la République fédérale
d'Allemagne Statementbv the Governmentof the FederalRevublicof Germany
for the InternationalCourt of Justice

From the standpointof the Federal Government, WHO'Srequescfor an advisoryopinion on the
use of nuclearweapons isbound to failbecausesucha request is not admissible.

The authonty to request an advisory opinionfromthe InternationalCourt of Justice, according

to Art.96 (1) of the UN Charter, is in principlerestricted to the General Assemblyand the
Security Councilas the mainbodies of the United Nations. AccordingtoArt.96 (7) of theUN

Charter, otherUN organs and specialized agenciesmay only request advisory opinionsfrom
the ICJ if the General Assemblyhas authorized themto do so and if thelegal question anses

withinthe scope of theirctivities.

It is tme that WHO was authorized by the GeneralAssembly(in .ArtX (7) of the Agreement
between the United Nations and WHO of 10July 193s) to request advisory opinions ofthe

ICJ. However, in accordance with the wordinj of .M. 96 (1) of the UN Charter, this
authonzation. too,isrestricted to "legalquestionsarisinçwithinthe scope of its competence".

WHOargued in favour of its cornpetenceon the issueof the legalityof usinç nuclear weapons

on the grounds that such use affects the health of the persons involved, as well as their
environment, and thus falls within the scope of its tasks. However, the Federal Government

cannot agree with such a line of argument. While Art. 1of the Constitution of the World
Health Organization defines WHO'Sobjective as the attainment by al1peoples of the highest

possible level of health. this objective in itself cannot be taken as a definition of WHO'S
hnctions. As issues from al1areas of politics can have an effect on people's health. WHO
would, were this clause to be so widelyinterpreted, cease to bea specializedorganizationfor

health issues and become competentin ailareas. In panicular, the Security Council'spnmary
responsibility for the maintenance of international peace and security in accordance with

Art. 24of the UN Chaner, as well as that of the General Assemblypursuant to Art.10 of the
UN Charter,would be irnpingedupon.Therefore the broad objective containedin Art.1of the Constitution of WHO must, based on

its Constitution and its relationship to other specialized agencies.be limited to apecific area
of issues, thecore of which is WHO'Sresponsibility forimprovingworld health. An. 2 of the

Constitution,-which defines the functions of WHO, in any case fails to supply evidencethat
matters of arms control and the legalityof the use of certainweapons could be counted among

the many health-policy tasks contained therein. The restriction of WHO'Sactivities to its
conventional area of responsibility can. for example, also be seen in its agreement with the

InternationalAtornicEnerg Agency(IAEA). Nthough WHO concerns itselfwith questions of
the impairnent of health in connection with the peaceful use of nuclear energy, it at the same

time recognized the primary responsibility of the IAEA for research, deveiopment and
application in the field of the peaceful use of nuclear energy (An. I(7) of the Agreement

between the International AtornicEnergy Agency and WHO).

Even if the ICJ agreed to take a wide view of WHO'Sfield of activity and recognized its

jurisdiction,itshould nevertheless rejectWHO'Srequest in this case.

In accordance with An. 65 of the Stature of the Court. the ICJ rnay give an advisory opinion
on a legal questi6n posed by an authorized body or organization.However. ithas. at the same

time. emphasizedthat itis not dut--bound to supply this legal advice. (ICJ Reports 1975. 21;
1987.31). It is true that the elaboration of opinions foLih'bodies and specializedagencies is

expresslyone of the hnctions of the Coun and thus should notbe rejected out of hand. In this
case, however, there are cornpellinçreasons. accord i no^the ICI'Sown consistent practice.in

favour of rejecting the request (ICJ Repons 1973, 183). .Atfirsi sight, the question posed by
M'HOinvolves the interpretation of existing international norms whichrniçht be relevant for

the use of nuclear weapons. and therefore appears to be a legal issue. But the vital interests of
many UN member States are also involved, which suggests that particularly strict critena

should be placed onthe appropriateness of the ICJ supplyingan advisory opinion. Otherwise,
the Court'sjudicial hnction might be jeopardized or discredited. Thus the ICJ, in this case,

should rejectthe request foran advisory opinion forreasons ofjudicial restraint.Even ifthe intentionis to assist the capabilityof UN bodies to function,'the result willstillbe
the sarne.ïhere isno evidencethat the vitalfunctionof WHO in the fieldof health care would
.
be impairedin any wayifits legd question werenot answered.

II.

on 5 October 1983,during Question Tirne in the GermanBundestag regarding "principlesof
the international lawof war" and "treaties bindingunder the international law ofwar". the
Governmentofthe Federal Republicof Gemany repliedto the question

:"In the Federal Government's opinion.can the use of nuclear weapons be permissible

under internationallawunderany possiblecircumstances?"

as follows:

"The use of nuclear weapons. like that of an! other weapon. is only permissibleunder
international lawin the exerciseof the inherentrizhi of indivioracollective self-defence

againstan armedattack.

There are no treaties prohibitinç nuclear weaponsas such. Neither is there an unwritten
ban, othenvise al1treaties limitin-,the proliferation of nuclearweapons or nuclear tests, or

seeking to create nuclear-weapon-freezones or to limit the number of nuclear weapons,
would be rneaninglesç.

According to general internationallaw. however, attacks on the civilian population are

always forbidden regardlessof the weapon used. ln addition,a distinctionmust alwaysbe
made betweencombatants and civilians.andthe latter must bespared as faras possible."

In this connection the Federal Government also pointed out that the principle of

proportionality in theaw of war equallyapplies to al1use of nuclear weapons and that each
individualuse of weapons must be judged accordingto its specific circurnstances (German

Bundestag, 10th legislativeperiod.Dmcksache 10/445,pages 4 and 8).These principles havealways been reflectedin NATO's nuclearstrategy. The development of

this strategy was always characterized by efforts to achieve the most limited possible role for
nuclear weapons. In November 1991the parties to the North Atlantic Treaty adopted a new

Strategic Concept en,visagingthe maintenanceof nuclearforces, albeit at a considerablylower
level than before. The basic objective of NATO's nuclearforces is political, Le., to preserve

peace and preventcoercion and anykind of war. The Alliancestrategy also maintains thatthe
"circumstances in which anyuse of nuclear weapons might have to be contemplated by them

are therefore even more remote". The decisive element is the fundamental principle. also
clearlylaiddown. that the Alliancewillneveruse anyof its weapons except in self-defence.

In addition, from the Federal Government's point of view, the following aspects are also

relevant foran overallappraisal ofthe World Health Organization's request:

The international community has fordecades made effortsto limitthe speciiic risks of nuclear
weapons by, among other things, elaborating new international lesal noms. In doing so ithas

chosen the option of continuallydeveloping a special international treaty law devoted to this
purpose. In this regard it is vitally sisnificant for the issuein question thatgeneral ban on

nuclear weapons has never been on the agenda in any negoriatingfomm, even though various
states have long demandedsuch a ban. There have been two main reasons for this: firstly,the

recognitionthat no consensus can be reached on such an aim due to its politically controversial
nature; secondly, the desire not to jeopardize what is legallyand politically possible,since a

polarizingargumenton an unachievable goal blocksthe road to gradua1success.

Thisprocess of graduallydevelopingcontractual lawon nuclear disarmament andamis control
has proved remarkably successful. One of the most important achievements, apan from the

major bilateral disarmament treaties, was the conclusion of the 1968 Treaty on the Non-
Proliferationof Nuclear Weapons. This treatyby no meansenvisages a generalban onnuclear

weapons but expressly presupposes the control over such weapons by five nuclear-weapon
states. An. VI, however. pledçes the latter to engage in nuclear disarmament. To date

164countries have become membersof this treaty. A conference of States Parties, to be held
next year, will decide on its extension. Germany, together with a number of other states, iskeen to see it extended indefinitely,its area of application made universal andthe entire
network of international noms regarding nuclear non-proliferation strengthened. Only by

consistently continuingefforts towards the contractual limitation and reductionof nuclear
weapons canthe States Parties hlfil the obligationcontainedin Article VI of the Treaty on the

Non-Proliferation of Nuclear Weapons, "to pursue negotiations in good faith on effective
measures relating to cessation of the nuclear arms race at an early date and to nuclear

disannament, and on a treaty ongeneral and complete disarmamentunder strict and effective
international control". Among the significant steps taken by the nuclear powers towards

disarmamentare the NF Treaty of 1987, the SALT 1and II Treaties of 1972 and 1979, and
the START 1andïI Treaties of 1991and 1993.

At present a hrther decisivestep towards the contractual limitationof nuclear weaponsisin

the ofring:negotiations ona comprehensive nuclear-testban (CTB) have been going on at the
GenevaConferenceon Disarmament sinceJanuaryof this year.

In this context the aforementioneddesire not to jeopardize whar is legallypossibletakes on a

new topicality.The indispensable focusing ofl1efforts onto the coming nuclear disarmament
and arms-controlÏtasks. the significanceof which can scarcely be overestimated. would be
endangered if an inevitablypolemic debate on a hypothericalleçal issue were to beçin now,

which will by its ver). nature remain politicallyconrroversial.thus allotvinç for no common
ooinioiurissupponing a universallyvalidleçaireply.